United States: Copyright Term Extension Act of 1998 Upheld by U.S. Supreme Court

In a 7-2 decision, the U.S. Supreme Court affirmed the decision of the U.S. Court of Appeals for the District of Colombia upholding the 1998 Copyright Term Extension Act (CTEA). Eldred v. Ashcroft, Case No. 01-618 (Jan. 15, 2003).

The CTEA extended copyright protection for future and existing works by an additional 20 years, preventing these works from entering the public domain until 70 years after the creator’s death. Copyright protection for works owned by corporations was extended by 20 years to a 95-year term. Eldred, the named petitioner, along with several others who primarily deal in goods and services related to previously copyrighted works that passed into the public domain, challenged the CTEA under the "limited times" requirement of the Copyright Clause of the Constitution, Art. I, §8, cl. 8 and the free speech guarantee under the First Amendment.

Justice Ginsberg, writing for the majority, rejected Eldred’s assertions that Congress exceeded its authority under the Copyright Clause by extending copyright protection for existing works in an attempt to create "perpetual copyrights." Specifically, the Supreme Court held that the "limited time" restriction of the Copyright Clause is not violated since the copyright terms under the CTEA are "still limited, not perpetual, and, therefore, fit within Congress discretion."

The Supreme Court found that the term extensions reflect a typical type of congressional judgment. The Court explained that "[b]y extending the baseline United States copyright term to life plus 70 years, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts," possibly enticing more U.S. and international authors to produce and distribute their works in the United States. Finding the CTEA "rational," the Court explained "we are not at liberty to second guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be."

The Supreme Court also found no impediment to extending the term of an existing copyright by another limited term, noting the amendment applied equally to existing and future copyrights: "‘[J]ustice, policy, and equity alike forb[id]’ that
an ‘author who had sold his [work] a week ago, be placed in a worse situation than the author who should sell his work the day after the passing of the [act].’"

The Court also rejected Eldred’s First Amendment challenge that the CTEA is a content-neutral regulation on free speech and, therefore, subject to strict scrutiny: "In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations." First, the Court noted, copyright protection is restricted to creative expression, not the ideas themselves. Second, the "fair use" defense even allows the public to use copyrighted expressions under certain circumstances, such as scholarship and comment.

Practice Note: The Supreme Court’s ruling was not surprising as the U.S. Court of Appeals for the District of Columbia had unanimously ruled against Eldred. Nonetheless, the decision is already being hailed as a victory for media and entertainment interests such as AOL Time Warner Inc. and the Walt Disney Co. and a defeat for internet publishers.